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2004 DIGILAW 284 (RAJ)

United India Insurance Co. Ltd. v. Sugan Kanwar

2004-02-25

PRAKASH TATIA

body2004
JUDGMENT 1. - Heard learned counsel for the parties. 2. Learned counsel for the appellant vehemently submitted that the driver of the vehicle involved in this accident was not driving the vehicle in the employment of the insured and, therefore, in view of the judgment of the Hon'ble Apex Court delivered in the case of Oriental Insurance Co. Ltd. v. Sunita Rathi & Ors., reported in AIR 1998 SC 257 the liability of the insurer arises only when the liability of the insured is established. 3. Learned counsel for the appellant further relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Rajasthan State Road to Transport Corporation v. Kailash Nath Kothari & Ors., reported in AIR 1997 SC 3444 wherein according to Learned counsel for the appellant, it has been held that if owner is liable then and then only the insurer can be held liable and not otherwise. 4. The principal question in this appeal was whether such a plea is available to the Insurance Company or not. According to Learned counsel for the appellant, the question raised by the appellant-company goes to the root of the matter and once it is found that the driver was not in the employment of the insured at the time of accident, then there arises no question of liability of the owner of the vehicle and if there is liability of the owner of the vehicle then the Insurance Company cannot be held liable. Therefore, according to Learned counsel for the appellant, Insurance Company, the Insurance Company can challenge the finding of the tribunal whereby the tribunal wrongly held that driver was in employment of the insured. 5. It is well settled law that the insurance company has right to raise only those defences, which are available to the insurance company under the provisions of Section 149 of the Motor Vehicles Act, 1988. If the proposition as advanced by the Learned counsel for the appellant is accepted then the insurance company will be free to take all the pleas on the basis of which insurance company can prove that the owner is not liable for the compensation. If the proposition as advanced by the Learned counsel for the appellant is accepted then the insurance company will be free to take all the pleas on the basis of which insurance company can prove that the owner is not liable for the compensation. Meaning thereby, indirectly, the insurance company will either step in the shoes of owner or it may be said that the insurance company intends to become guardian of owner of the vehicle to protect the interest of the owner to avoid its liability by taking all the defences, which are not available to the Insurance Company under law. This will be doing nothing but complete go-bye to the statutory provisions of law as well as it will be contrary to the decisions rendered by the Hon'ble Apex Court wherein the Hon'ble Apex Court held that the insurance company may take only those defences, which are available to the insurance company under Section 149 of the Act of 1988. 6. Learned counsel for the appellant also submitted that in case owner did not contest the claim or did not appear in witness box then adverse inference is required to be drawn against the owner of the vehicle. Such a plea is also available to a party who has right to challenge the award and not to the party who has no right to challenge the award since the appeal is not maintainable, therefore, i do not find any force in the submission.In view of the reasons given above, the appeal of the appellant is dismissed.Appeal Dismissed. *******